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Why the Toxic Substances Control Act needs reforming

February 10th, 2010

(This article was first posted on Jan. 25, 2010, by the Natural Resources Defense Council on its Simple Steps website. It is a Q & A with NRDC Senior Attorney Daniel Rosenberg exploring why the Safer Chemicals, Healthy Families coalition, of which the NRDC is a member, wants tighter controls on toxic substances.)

By Paul McRandle

Q: Quickly, what is TSCA and why does it need to be reformed?

Daniel Rosenberg: TSCA is an environmental law first enacted in 1976 and never updated since, that was intended to regulate the safety of industrial chemicals—that is most chemicals that find their way into the stream of commerce. It is generally regarded to be the greatest failure of all the major environmental laws passed in the early 1970s. This is because there were 62,000 chemicals in use when it was enacted and all of those chemicals were grandfathered in, meaning they didn’t have to be tested or required to meet a safety standard. On top of that, the law makes it extremely difficult for EPA to take action even when they know a chemical is unsafe, like asbestos. The way the law is written, the burden is on the agency to prove a chemical is unsafe rather than the companies who make chemicals having to prove they are safe.

Some 22,000 chemicals have come onto the market since 1976, and for those new chemicals EPA’s ability to regulate them is also very limited. The companies did not supply information on the health or environmental effects of most of these chemicals, because they aren’t required to do so. To get that information, EPA would have to issue a separate rule for each chemical, which is a cumbersome, expensive, and lengthy process.

So, roughly 84,000 chemicals are allowed on the market without evidence that they are safe and for a number of them, we know they are not safe.

Q: Congress has been holding hearings about TSCA reform, but at this point where do things stand?

DR: NRDC is an active member of a broad campaign to reform TSCA called Safer Chemical Healthy Families. It includes a number of environmental groups as well as health-affected, healthcare, community and state groups,environmental justice and labor groups. That campaign released a set of principles for TSCA reform and EPA and several other stakeholders have done so as well, including the American Chemistry Council, the major industry trade association, and a dozen or so states. All these sets of principles were remarkably similar in their scope. While that doesn’t mean that all the interested parties agree on the details, it does suggest there is a clear set of issues everyone has identified that need to be worked out. Legislation is expected to be introduced in Congress by the end of February. When that happens, NRDC will work with our allies to educate members of Congress and their staff, as well as NRDC’s members and the general public about the legislation as it moves through Congress.

Q: Socioeconomic risk factors are also very important, given high asthma rates and incidents of early puberty in African American communities. Is environmental justice an element in TSCA reform?

DR: In our view, TSCA should be a place to address some of the problems for communities that are disproportionately exposed, and therefore vulnerable, to toxic substances. One of the platforms of our campaign is that “effective reform should contribute substantially to reducing the disproportionate burden of toxic chemical exposure placed on people of color, low-income people and indigenous communities.” That’s not a traditional part of existing TSCA but we think that’s an important concept that should exist in any reform.

Of the now 84,000 chemicals, EPA has taken action to partially regulate only five of those chemicals. The only chemical that was ever banned under TSCA are PCBs, which Congress passed as part of the original law. Of course, PCBs are still around, since they are so persistent, polluting rivers and triggering fish consumption advisories. There are dozens of other persistent and bioaccumulative toxic substances that have not been adequately regulated under TSCA (lead and mercury are two that are well known).

There are a number of other chemicals that we know are dangerous and that people are widely exposed to—for example, formaldehyde, asbestos, and solvents likeTCE—and those are commonly found in a lot of disadvantaged communities. So another plank of our platform is that these persistent, bioaccumualtive and toxic substances (PBTs) that people are exposed to should be phased out of use and new ones kept from entering the market. Exposure to other toxic chemicals, like formaldehyde, that have already been extensively studied, should be reduced to the maximum extent feasible.

Q: How can the public support TSCA reform

DR: One of the most important things people can do is pick up their phone or pen or mouse or portable texting device (not while driving) and communicate with their members of congress and state officials that this is an issue that you care about and you want to see reform. The statute has done almost nothing and hasn’t done nearly what the Clean Air and Clean Water acts have done, so most members of congress know very little about this law and how broken it is, although they do understand that there are a lot of people concerned about exposures to toxic substances. Perhaps they have family members or friends who have cancer, or have a learning disability, or have wrestled with infertility or other reproductive problems, all of which have been associated to some degree to exposure to toxic chemicals, which is what the report we released discusses. So they need to hear from their constituents and have a clear sense that those issues resonate with the public and that people want the law to be reformed and the lack of proper regulation of toxic chemicals to be addressed.

Although the law has been on the books for so long—34 years—in many respects this is still a new issue for members of congress. Every member of congress would benefit from hearing more about this issue and the public’s concern.

Q: Although the report doesn’t delve to the level of associating specific compounds with specific diseases, it does point out the general health effects associated with them, such as causing cancer, reproductive problems or harming the brain. The neurotoxicity list is particularly daunting. If we can’t substitute these compounds with healthier versions, what can we do?

DR: For many of these substances, we think safer alternatives do exist. However, part of the way TSCA is broken is that, because all this bad stuff has been allowed to be used forever, there is no federal force really driving innovation and development of safer chemicals So once there’s a law in place that’s going to phase out the use of chemicals that don’t meet a standard of safety, there’s going to be a drive for innovation that’s beneficial for the companies that can create the most effective but safe chemicals or non-chemical alternatives.

Another element of the platform is to get a minimum set of information – sort of a basic safety profile — about each of the chemicals. Not only will it help us find the chemicals that pose health or environmental risks, it will also help us identify some chemicals that are safe. We may have the safer alternatives already. You’re trying to sort the enormous haystack into two smaller piles, the unsafe and the safe.

Q: Out of the 80,000 chemicals that have been produced, how many have even kept their names trade secret?

DR: This is another area where TSCA hasn’t work well. There is legitimate confidential business information, known as CBI, but in our view the name of the chemical should not be CBI. But the problem is now that many companies submit all the information including the name as CBI since they rarely are called upon by EPA to justify the claim up front. EPA frequently doesn’t challenge CBI claims because it doesn’t have the time or the money. EPA recently announced a shift in how they will deal with that issue to require more scrutiny up front, but there definitely needs to be more reform on the process for determining what information is legitimately CBI and what is not.

Besides EPA not having enough information about these chemicals, the public doesn’t either. People do not know what chemicals are in products and there are not currently requirements for companies to disclose much information about their chemicals. That’s a very important reform.

Q: Is there a way to screen for PBTs before they’ve become persistent in a community?

DR: There are characteristics of a chemical that identify them as persistent or bio-accumulative. Effective TSCA reform would ban use of chemicals that are known to have these characteristics.. A lot more is known about the persistence and bioaccumulation of toxics than when TSCA was written. There’s also so much greater knowledge now about small doses of certain toxic substances affecting people, the hormone disrupting potentials and cumulative exposures, but the way the law is written none of this new science has had any impact on the way things are done.

Q: What can readers do to reduce their exposures? How can they find out what chemicals are in their homes, water & air, workplaces and schools?

DR: The burden shouldn’t be on the consumers to do a huge investigation to find out what’s in it. That should all be known up front, that’s what industry should be disclosing to the public.



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